FATHER CAN MOVE AWAY WITH CHILD WHEN ENSURING SON’S ACADEMIC PROGESS

An interesting unpublished opinion, entitled IRMO R. & M., was filed late last year by the California Appellate Courts. In it, the appellates ruled that evidence that a Father maintains a more stable household and is more likely to ensure his son’s academic progress warrants new custodial orders placing the child with father when he moves to New Jersey.

It is important to remember, however, that unpublished opinions are succinctly covered under the California Rules of Court, which provide that “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be relied on by a court or a party in any other action.” Thus, all unpublished opinions discussed at this cite should be considered for educational purposes only, and they should not be cited or relied upon except as permitted under California’s rules of court.

The pertinent facts of IRMO R. & M. were as follows. In 2008, Mother and Father agreed to joint legal and physical custody of their son. Under this agreement, both parties would have equal timeshares of their son. In 2010, Father moved to modify the 50-50 time split due to his concern with Mother’s stability, her use of prescription pain medication, her “chaotic” home environment, and her inability to ensure Son was attending school.

Based upon a finding Mother had been unable to ensure Son regularly attended school, the trial court accepted most of the mediator’s recommendations and awarded custody to Father during the school week with Mother having visitations on certain weekends. Father’s custody share was 78% under these temporary orders.

In January 2011, Father remarried. Two months later, he moved to modify the custody arrangements to reflect his decision to move to New Jersey. Father cited a job change and the fact his new wife lives in New Jersey as reasons for the move.

A custody mediator produced a report recommending the court award primary physical custody to Mother when Father moved to New Jersey. The trial court, however, found Father to be the primary parent, and that he would insure Son progressed academically and maintained a more stable household.

The trial court compared this to the less favorable circumstances in Mother’s household and the physical challenges she was required to deal with a result of her poor health. Based upon such findings, the trial court ruled Son would live with Father in New Jersey, but it reserved a generous visitation schedule for mother, and the appellate court affirmed.